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PP Land Law > Chapter 7.2 - Restraint of Dealings: Private Caveats > Flashcards

Chapter 7.2 - Restraint of Dealings: Private Caveats Flashcards

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1
Q

PRIVATE CAVEATS

Overview

A

1) Effect
2) Who can enter
3) Procedures for application
4) Procedures for entry
5) Defective private caveat
6) Removal of private caveat

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2
Q

PRIVATE CAVEATS

Effect of private caveats

A

S.322:

-
-

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3
Q

PRIVATE CAVEATS

Who can enter - the law

A

S.321

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4
Q

PRIVATE CAVEATS

Who can enter - person that has a claim or title to the land or registrable interest on the land

A

1) The law:
- S.323(1)(a)
2) Meaning of interest - Miller v Minister of Mines:

  • must be registrable interests;
  • i.e. S.292

3) Meaning of title & interests - Luggage Distributors v Tan Hor Teng:

  • limited to registrable interests & title.
  • makes claim or claims a right.

4) Meaning of caveatable interest - Score Options Sdn Bhd v Mexaland Sdn Bhd:

  • interest representing that could ultimately lead to its registration;
  • should be existing interest
  • cannot include potential or future interest.
  • caveatable interest cannot be created by agreement between parties.
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5
Q

PRIVATE CAVEATS

Who can enter - beneficiary under a trust

A

1) The law:

S.323(1)(b)

2) Residuary beneficiary - Tan Heng Poh v Tan Boon Thong:
- residuary has no caveatable interest, unless the administration of the estate has complete.
3) Non-citizen beneficiary - Brett McNamara v Kam Lee Kuan:

  • a non-citizen beneficiary has caveatable interest;
  • he may lodge a private caveat on the land he is entitled to as beneficiary.

4) Resulting or constructive trust - Registrar of Titles, Johor v Temenggong Securities:
- Beneficial interest arising under express, constructive or resulting trust amount to caveatable interest.
5) Trust arise in equity - Inter-Continental Mining v Societe des Estains:

  • a PC may be entered to protect the rights under mining agreement;
  • a trust is presumed to have arisen in equity as claimant has entered the land & spent a huge amount money to commence mining operations pursuant to the agreement.
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6
Q

PRIVATE CAVEATS

Who can enter - guardian or next of kin of beneficiary

A

The law:

S.323(1)(c)

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7
Q

PROCEDURES FOR APPLICATION OF PC

The law

A

S.323(2):

  • Form:
  • Attestation:
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8
Q

PROCEDURES FOR APPLICATION OF PC

Contents of application - nature of claim

A

Tan Heng Poh v Tan Boon Thong:

  • application must state whether the claim is binding on the land itself or binding a particular interest.
  • failure will render the caveat legally unsustainable.
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9
Q

PROCEDURES FOR APPLICATION OF PC

Contents of application - error on essential details

A

Wong Fok Seng v Mrs Fredericks Nee Khoo Swee Choo:

  • Error in stating the proprietor’s name as the person executing Form 19B was fundamental error going to the root of the caveat;
  • Fundamental error in the attestation clause in Form 19B renders the form & caveat a nullity.
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10
Q

PROCEDURES FOR ENTRY OF PC

The law

A

S.324

  • Note:
  • Entry:
  • Effecting:
  • Service:
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11
Q

DEFECTIVE CAVEATS

Overview

A

1) Grounds for defect
2) Effect of defective caveat
3) Duty of court

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12
Q

DEFECTIVE CAVEATS

Grounds for defect

A

1) Non-compliance with S.232(2) - Tan Heng Poh v Tan Boon Thong:
- failure to state nature of claim renders the caveat defective.
2) Essential errors in form 19B - Wong Fok Seng v Mrs Fredericks Nee Khoo Swee Choo:

  • Error in stating the proprietor’s name as the person executing Form 19B was fundamental error going to the root of the caveat;
  • Fundamental error in the attestation clause in Form 19B renders the form & caveat a nullity.
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13
Q

DEFECTIVE CAVEATS

Effect of defective caveat

A

1) Not bound to amend:
- court is not bound to amend or modify to save the caveat.
2) No power to allow amendment:
- court has no power to allow amendment simply by supplemental affidavits.

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14
Q

DEFECTIVE CAVEATS

Duty of court

A

Tan Heng Poh v Tan Boon Thong:

  • in deciding whether a caveat is defective or not, court shall confine itself to the caveat & other supporting documents.
  • where necessary, court may not order for removal but amendment under S.327(1) to protect the right of caveator.
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15
Q

REMOVAL OF CAVEATS

Overview

A

1) By caveator
2) By Registrar
3) Issues
4) By court

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16
Q

REMOVAL OF CAVEATS

By Caveator

A

S.325:

  • When:
  • Form:
  • Attestation:
  • Fee:
  • Notice:
  • Sign & seal:
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17
Q

REMOVAL OF CAVEATS

By Registrar

A

S.326:

  • By whom:
  • Form:
  • Attestation:
  • Notice:
  • Time limit:
  • Service:
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18
Q

REMOVAL OF CAVEATS

Issues - removal by unregistered applicant

A

Tan See Hock v D&C Bank Sdn Bhd:

  • application by unregistered chargee is held to be bad;
  • subsequent issuance of notice in Form 19 is held to be ultra vires.
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19
Q

REMOVAL OF CAVEATS

Issues - defective service of notice

A

Alagarsamy v Tai Phaik Khee:

  • removal will be invalid if there is no service of notice or unsuccessful attempt of notice;
  • in such a case, the notice is deemed to be unserved & removal of caveat is invalid.
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20
Q

REMOVAL OF CAVEATS

By court - overview

A

1) Procedures
2) Meaning of aggrieved party
3) Examples of aggrieved party
4) Ex-parte application
5) Grounds for removal
6) Test for removal

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21
Q

REMOVAL OF CAVEATS BY COURT

Procedures

A

S.327

22
Q

REMOVAL OF CAVEATS BY COURT

Meaning of aggrieved party

A

RAP Nathan v Haji Abdul Rahman bin Haji Yusoff:

  • aggrieved means something wrongful in law which has been done that affects their title or property or cause them loss if the caveat is not removed.
23
Q

REMOVAL OF CAVEATS BY COURT

Example of aggrieved party - registered chargee

A

Oversea-Chinese Banking Corp Ltd v Konsortium Utama Sdn Bhd:

  • registered chargee is treated as an aggrieved party as he has an indefeasible interest in the land.
24
Q

REMOVAL OF CAVEATS BY COURT

Example of aggrieved party - purchaser at judicial sale

A

Gondola Motor Credit Sdn Bhd v Almurisi Holdings Sdn Bhd:

  • successful purchaser who had paid deposit or full purchase price & in possession of valid certificate of sale is recognised as an aggrieved party.
25
Q

REMOVAL OF CAVEATS BY COURT

Example of aggrieved party - co-proprietor

A

Rohaya bte Ibrahim v Yusof bin Ibrahim:

  • co-proprietor who is unable to perform his obligation under SPA due to the existence of caveat is also an aggrieved party.
26
Q

EX-PARTE APPLICATION

The law

A

UMBC v Chan Yee Chung:

  • Applicant who applies for removal ex parte must serve the application to the caveator;
  • caveator should be given an opportunity to attend hearing & resist the application.
27
Q

GROUNDS FOR REMOVAL OF CAVEAT

Overview

A

1) No caveatable interest
2) Disruption of co-owner’s right
3) Failure to disclose material facts
4) Inordinate delay
5) Pecuniary interest
6) JV or project management agreement

28
Q

GROUNDS FOR REMOVAL OF CAVEAT

no caveatable interest

A

Omar bin Mat Ziki v Mokhtar bin Amin:

  • court will order for removal if caveator fails to prove his caveatable interest.
29
Q

GROUNDS FOR REMOVAL OF CAVEAT

disruption of co-owner’s right

A

Hasiah bt Mat v Johanariffin bin Din:

  • court will order for removal if the caveat impedes a co-owner from effecting a lawful termination of the co-proprietorship of the land.
30
Q

GROUNDS FOR REMOVAL OF CAVEAT

Failure to disclose material facts

A

Ooi Bee Tat Development v Ooi Bee Lee:

  • failure to disclose material facts during ex parte application warrants a ground for removal of caveat.
31
Q

GROUNDS FOR REMOVAL OF CAVEAT

Inordinate delay

A

Tanjung Rhu Land v Mamlaka Langkawi Sdn Bhd:

  • Inordinate delay in entering caveat w/o reasonable explanation will result in claim being vexatious;
  • this can afford a ground for removal of caveat.
32
Q

GROUNDS FOR REMOVAL OF CAVEAT

Pecuniary interest

A

Institut Teknologi Federal Sdn Bhd v IIUM Education:

  • mere pecuniary interest in land does not entitle a person to lodge a caveat.
33
Q

GROUNDS FOR REMOVAL OF CAVEAT

JV or project management agreement

A

Score Options Sdn Bhd v Mexaland Development Sdn Bhd:

  • rights acquired under JVPM does not amount to caveatable interest;
  • i.e. the rights only give rise to a monetary interest or right in personam, not right to lodge a caveat.
34
Q

TEST FOR REMOVAL OF CAVEAT

3-stages test

A

Luggage Distributors v Tan Hor Teng:

1) Stage 1 - cavetable interest - Macon Engineers Sdn Bhd v Goh Hooi Yin:

  • caveator must prove that he has caveatable interest;
  • if he does not have sufficient CI, caveat will be removed.

2) Stage 2 - serious issue to be tried - Eng Mee Yong v Letchumanan:

  • caveator must show that based on affidavits filed, his claim discloses a serious question to be tried meriting a trial;
  • no “prima facie” proof is required;
  • court should only decide based on affidavits.

3) stage 3 - balance of convenience - Hock Seng Mining v Datuk Setia Hj Abdul Ghani:
- balance of convenience will not lie in favour of permitting the caveat remains if:

  • – proceedings have been brought timeously by the caveator;
  • – caveator’s claims can be satisfied by an alternative claims for damages
  • in such a circumstance, balance of convenience will lie in favour of removing the caveat.
35
Q

MISCELLANEOUS

Overview

A

1) Competing registrable interest
2) Requirements of notice
3) Compensation for damages for wrongful entry
4) Second caveats

36
Q

COMPETING REGISTRABLE INTEREST

Overview

A

1) general
2) no inducement
3) notice
4) registered vs equitable interest
5) recent application

37
Q

COMPETING REGISTRABLE INTEREST

General

A
  • court has always resolved to equitable principles of qui prior est temporem potior est jure;
  • i.e. he who is earlier in time is stronger in law.
38
Q

COMPETING REGISTRABLE INTEREST

No inducement

A

UMBC v Goh Tuan Lye & Ors:

  • prior claimant will maintain his priority;
  • this is so if he has not induced subsequent claimant to act on his detriment.
39
Q

COMPETING REGISTRABLE INTEREST

notice

A

Harun v Mah:

  • if the prior claimant has not given notice of his prior claim & thereby induce subsequent claimant to act on a belif that there is no existing prior claim, his position will be postponed to that subsequent claimant.
40
Q

COMPETING REGISTRABLE INTEREST

registered vs equitable interest

2013

A

Wong Wee Kheong v Daya Bersama Sdn Bhd:

  • registered interest will always prevail over an equitable interest;
  • determination of priority should be at the current date.
41
Q

COMPETING REGISTRABLE INTEREST

recent application

FC, 2018

A

See Leong Chye & Aor v United Overseas Bank:

  • competing interest of the parties must be determined on the facts of particular case;
  • court must take into account the application of S.340 as a whole.
42
Q

REQUIREMENTS OF NOTICE

Actual notice

A

Zeno Ltd v Prefabricated Constructions:

  • Actual notice must be given by way of the entry of a caveat on the register;
  • Failure constitutes negligence & defeats equity.
43
Q

REQUIREMENTS OF NOTICE

Constructive or imputed notice

A

Vallipuram Sivaguru v Palaniappa Chettiar:

  • May be given by way of taking possession of the land or the IDT, even though no caveat has been entered.
44
Q

COMPENSATION FOR DAMAGES ON WRONGFUL ENTRY

Overview

A

1) The law
2) Entitlement of damages
3) What claimant has to prove

45
Q

COMPENSATION FOR DAMAGES ON WRONGFUL ENTRY

The law

A

S.329(1)

46
Q

COMPENSATION FOR DAMAGES ON WRONGFUL ENTRY

Entitlement to damages

A

Quill Constructions Sdn Bhd v Tan Hor Teng:

  • wrong or unlawful entry;
  • malicious entry;
  • failure to withdraw;
  • actual loss, real & reasonable.
47
Q

COMPENSATION FOR DAMAGES ON WRONGFUL ENTRY

What claimant has to prove

A

Cheng Chin Hing v Shak Eng:

  • PC entered was wrong or w/o reasonable cause;
  • the claimant had suffered damages or losses as a result of lodgment of PC.
48
Q

SECOND CAVEATS

Overview

A

1) The law
2) Fresh entry for bona fide purpose
3) Voluntary removal

49
Q

SECOND CAVEATS

The law

A

S.329(2)

50
Q

SECOND CAVEATS

Fresh entry for bona fide purpose

A

Thevathason v Kwong Joon:

  • fresh entry may be allowed upon expiry of 6 years;
  • the entry must be for bona fide purpose of protecting the caveator’s interest of the same land.
51
Q

SECOND CAVEATS

Voluntary removal

A

Hip Yiak Trading Sdn Bhd v Hong Soon Seng Sdn Bhd:

  • caveator who has entered a caveat, subsequently withdrew the caveat, is not prevented from entering a new caveat.

PP Land Law (14 decks)

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